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Planning for the Unthinkable

In the wake of the Terry Schiavo case and the death of Pope John Paul II many clients are focusing on end-of-life issues, particularly those surrounding life support and the final wishes of an incapacitated patient. Financial concerns, of course, take a back seat to the ethical and medical decisions. But end-of-life events are almost always fraught with financial implications that need to be addressed.

In the wake of the Terry Schiavo case — and the death of Pope John Paul II — many clients are focusing on end-of-life issues, particularly those surrounding life support and the final wishes of an incapacitated patient.

Financial concerns, of course, take a back seat to the ethical and medical decisions. But end-of-life events are almost always fraught with financial implications that need to be addressed. The better prepared a patient and his family are for end-of-life decisions, the more smoothly the financial portion of the event is likely to proceed.

What is End-of-Life Planning?

End-of-life planning involves creating a plan for making critical health care decisions when a client is in a terminal medical condition or is permanently unconscious and unable to make those decisions for himself.

What are the essential end-of-life planning documents?

A comprehensive end-of-life plan should include the following:

A Living Will — a document expressing the client's wishes regarding the withholding or removal of life support measures and the provision of pain relief measures, in the event the client is in a terminal medical condition or a permanent coma.

A Health Care Proxy — a document in which the client appoints a health care agent to express her wishes regarding removing or withdrawing life support measures in the event the client is unable to do so herself.

A Durable Power of Attorney for Health Care Decisions — a document in which the client appoints an attorney-in-fact to make health decisions other than the ultimate decision to remove or withdraw life support measures.

A Financial Power of Attorney — a document in which the client appoints an attorney-in-fact to make financial decisions. This document can be combined with the durable power of attorney for health care decisions if the same attorney-in-fact is named.

A HIPAA Authorization — a document in which the client designates those individuals authorized to access the client's private medical information under the Health Insurance Portability and Accountability Act of 1996 in the event of the client's incapacity.

What are the primary provisions of a living will?

A living will include two key features: First, a statement of the triggering event or events that will cause the living will to become operational, and, second, a list of treatments that the client does or does not want once the document becomes operational.

Under many states' laws, a living will becomes operational only if the client is unable to express her health care decisions on her own and either (a) the client is in a “terminal medical condition” or (b) the client is in a “persistent vegetative state.”

These phrases often lead to additional questions from the client, such as: What is a “terminal condition?” (After all, as one client famously told us, isn't all of life really one long terminal condition?) What is a permanent vegetative state? Who decides these matters?

There are no pat or easy answers to these questions, and lawyers are often ill-equipped to answer them because the questions are really not so much legal questions as they are medical questions, the answers to which, to a large degree, will depend on the particular circumstances that exist near the time of the client's death.

A living will is usually accompanied by a health care proxy document in which the client names a health care agent.

What is the difference between a health care proxy and a durable power of attorney for health care decisions?

A health care proxy appoints a health care agent, whose power usually is limited to communicating the client's wishes regarding the withholding or removal of life support measures in the event that the client is in a terminal medical condition or a persistent vegetative state. The durable power of attorney for health care decisions is a much broader document that grants the attorney-in-fact the authority to make all additional health care decisions on behalf of the client. Many states' laws do not permit the inclusion of the power to decide whether or not to remove life support measures in a durable power of attorney for health care decisions; therefore, the health care proxy is typically a separate document from the durable power of attorney for health care decisions.

Why is a financial power of attorney listed as an end-of-life planning document?

A financial power of attorney provides sweeping powers for the attorney-in-fact to make financial decisions on behalf of the client, not just at the end stage of life, but at any time. We list it as an end-of-life planning document because it provides a mechanism for paying for the financial consequences of the decisions made by the health care agent or attorney-in-fact for health care.

What is a HIPAA Authorization?

Under the health insurance portability and accountability act of 1996 (HIPAA), most health care providers are broadly restricted from disclosing a patient's medical information to anyone other than the patient without the patient's consent. So, for example, without a HIPAA authorization signed by the client, a health care agent would not have access to the client's medical information necessary for the agent to make an informed decision as to whether life support measures should be withheld or removed. In the HIPAA authorization, the client consents to the release of her private medical information to her “personal representatives” named in the authorization.

The documents we've described in this article are typically simple forms that take little time to prepare. As such, lawyers and clients alike may tend to think that little time needs to be spent discussing these issues.

As the Terry Schiavo case illustrated, however, we ignore these issues at our peril. Addressing these issues comprehensively, and well in advance of a serious illness, can head off severe emotional, legal and financial troubles for our clients and their families.